Supreme Courts around the World: January and February 2012

The president of the Islamic Friendship Association of Australia, Keysar Tad, brought a claim against Radio Station 2GB for defamation pursuant to one of its presenters calling Mr Trad “a disgraceful and dangerous individual who incited violence, hatred and racism” in a program broadcast on 19 December 2005. A jury found that the defamatory imputations in question had been conveyed and were defamatory. However, at a subsequent hearing Justice McClellan ruled against Mr Trad, upholding the Radio Station’s defences, which included public interest, substantial truth and response to attack. The Court of Appeal later found that Justice McClellan had erred in upholding the defences of substantive truth and comment in respect of the defamatory allegations about Mr Trad made by the radio presenter in question, although it did uphold the rare defence of reply in respect of a number of the imputations pleaded. The Radio Station appealed to the High Court on the grounds that the Court of Appeal had applied the wrong tests when determining whether the broadcast in question was published on an occasion of qualified privilege arising from Mr Trad’s prior public attach on the Radio Station. Mr Trad in turn sought to file a notice of cross-appeal on the grounds that the whole of the qualified privilege defence should have been rejected.

The appeal concerned a challenge to the reasonableness of a tax rate bylaw affecting the District of North Cowichan, on the southeastern shore of Vancouver Island. The appellant argued that the Supreme Court should set aside the municipal bylaw in question on the ground that it was unreasonable, having regard to objective factors such as consumption of municipal services. The respondent, the District of North Cowichan, argued that the judicial power to overturn a municipal tax bylaw is very narrow and that the Court cannot overturn a bylaw simply because it places a disproportionate burden on a taxpayer. The British Columbia Supreme Court and the Court of Appeal upheld the impugned bylaw and the appellant appealed to the Court. The Court concluded that the power of the courts to set aside municipal bylaws is a narrow one and cannot be exercised simply because a bylaw imposes a greater share of the tax burden on some ratepayers than on others. The Court concluded that the bylaw fell within a reasonable range of outcomes and did not constitute a decision that no reasonable elected municipal council could have made.

The appeal arose out of requests for information which had been provided to the government by a manufacturer as part of a drug approval process. In order to obtain approval to market new drugs, innovator pharmaceutical companies such as the appellant are required to disclose a considerable amount of information to the government regulator, the respondent HealthCanada, including material that they do not want to fall into their competitors’ hands. However, competitors are equally entitled to the disclosure of government information under the Access to Information Act 1985. The issue before the Court was the interpretation and application of several provisions of the 1985 Act that govern the disclosure or non-disclosure of trade secrets or information the disclosure of which could cause economic harm to a third party. The appeal was dismissed, although the Court found some merit in the appellant’s claims. The decision will be of interest to public bodies dealing with requests for third party information and to private sector organisations that do business with, and provide information to, public bodies.

The issues before the Supreme Court were: (a) whether the offence of buggery was a statutory offence under Section 61 of the Offences against the Person Act 1861 or whether it was a common law offence; and (b) whether the appellant could be prosecuted for the offence of buggery in respect of acts constituting that offence which were allegedly committed prior to the repeal of Section 61 of the Act. The appellant was a priest who held a teaching post in a school inIrelandand faced charges relating to a 13 year old boy and a 14 year old boy at the school.

The Supreme Court ruled that no-one can be prosecuted for the former crime of buggery. The issue divided the Court 3-2, the majority of the Court being of the view that the offence of buggery was not a statutory offence when it was abolished in 1993. Three written judgments are now available. The Chief Justice (here) and Judge Hardiman (here) wrote in support of the majority position, with Judge Fennelly dissenting here.

The primary basis for the proposed appeal was the contention that the usual open justice approach should not apply in the case of a professional person with a high public profile facing disciplinary charges, particularly where criminal offending is not alleged. The Court held that it was untenable to suggest that professional people of high public profile, such as the applicant, have anything approaching a presumptive entitlement to suppression. The Court found no arguable error in the approach taken by the Court of Appeal, which had fully reviewed the applicant’s requests for suppression. Consequently, the application for leave to appeal was dismissed.

The Claimant, Mrs Wilson, had received substantial payments from a company under the control of Mrs Wilson’s father and/or husband, APG Holdings Ltd, which subsequently went into liquidation. The liquidator sought to recover these payments under Section 298(2) of the Companies Act 1993 and argued that that the payments were a disposition of the company’s property exceeding the value of any consideration received by the company. The Supreme Court held that the use of the word “misappropriations” by the Court of Appeal was an unfortunate characterisation of the overdrawings, given that the payments were said to have been authorised and that no dishonesty appeared to have been asserted on the part of theWilsons.

The Constitutional Court gave judgment in a case that required it to decide whether certain provisions of the Children’s Act authorising the removal of children in certain circumstances were consistent with the Constitution and whether a requirement should be read into the provisions that all these removals should be automatically reviewed by the Children’s Court shortly after the removals had taken place.

This judgment has been hailed by commentators as one of the most significant Fourth Amendment decisions of the decade. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Without a warrant, police in Maryland had attached a GPS tracking device to the accused’s car for 28 days, which emitted information about the accused’s location every few seconds. The Court argued that it was necessary to assure preservation of the degree of privacy against government that existed when the Fourth Amendment was adopted and concluded that the lengthy monitoring that had occurred constituted a search under the Fourth Amendment. The decision is also of interest in its discussion of the recent emergence of numerous new devices that permit the monitoring of a person’s move­ments and the way that this will shape the “average person’s expectations about the privacy of his or her daily movements.”

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If you’re interested in reading more about the US GPS surveillance case, Jones v. US, I wrote a fairly extensive note on it for the Association of Commonwealth Criminal Lawyers’ website. You can find my piece at http://www.acclawyers.org/?p=2980.